Jail officials “may not turn a blind eye to a deaf ear,” the Court of Appeals for the Ninth Circuit fittingly declared in an August 31, 2017 ruling that reversed a summary judgment order in a lawsuit filed by a deaf former prisoner.

David Updike was born unable to hear and communicates primarily through American Sign Language (ASL). He does not read or speak English well. Having never heard English words, he is not proficient at lip reading because he does not know the shape the lips make to produce certain words. All of Updike’s friends and his ex-wife are also deaf, and he “lives in the deaf world.”

On January 14, 2013, police were called to Updike’s home in Gresham, Oregon for a domestic disturbance. Dispatchers were told the disturbance involved deaf people, but the responding officers did not bring an ASL interpreter with them. Despite claiming that a deaf houseguest had assaulted him after he refused to give the guest money, Updike was arrested and taken to the Multnomah County Detention Center (MCDC) for booking.

MCDC has a telecommunications device (TDD) for deaf prisoners, and the county contracts with a private company to provide ASL interpreters at the jail. During his two days in jail, Updike repeatedly requested an ASL interpreter and a teletypewriter (TTY). His requests were repeatedly denied.

He was not provided with any accommodation for his hearing disability while he was questioned by police officers or during the booking process, a medical intake interview, a recognizance interview, a classification assessment and arraignment. In short, Updike was not given any access to an ASL interpreter, a computer, a TTY, video relay service, or pen and paper during his incarceration. He could not call his attorney or family members without a TTY device and could not watch television because there was no video relay service or closed captioning. He was ultimately held at the jail a day longer than he would have been if an ASL interpreter was available at his initial arraignment.

Updike filed suit in federal court against the City of Gresham, Multnomah County and the State of Oregon on September 13, 2013. He alleged the defendants violated the Americans with Disabilities Act (ADA) and Rehabilitation Act by repeatedly failing to accommodate his hearing disability during his arrest and confinement. He sought injunctive relief, compensatory damages and attorneys’ fees and costs. The City of Gresham settled a few months later. The district court then granted summary judgment to the state and county defendants.

The Ninth Circuit affirmed the grant of summary judgment on Updike’s injunctive relief claim because he was no longer incarcerated and could not show that the ADA violations were likely to recur. However, the appellate court reversed the summary judgment order with respect to the compensatory damage claims.

“To deny a deaf person an ASL interpreter, when ASL is their primary language, is akin to denying a Spanish interpreter to a person who speaks Spanish as their primary language,” the Court of Appeals wrote. “An ASL interpreter will often be necessary to ensure communication with a deaf person who has become enmeshed in the criminal justice system. At a minimum, officials must conduct an adequate investigation into what accommodations may be necessary to permit effective communication of the deaf while incarcerated.”

The Court therefore reversed “the district court’s holding that no evidence in the record created a genuine issue of material fact on whether the County violated the ADA or the Rehabilitation Act by inaction and conduct undertaken with deliberate indifference to Updike’s legitimate needs as a deaf individual.” The case remains pending on remand. See: Updike v. Multnomah County, 870 F.3d 939 (9th Cir. 2017), petition for cert. filed.